Reed v. Kemp

Scates, 0. J. Five questions have been presented and pressed upon our attention, in the argument of this cause First, That cross-bills have been filed and have not been answered ; Second ,The execution of the bond by Reed; Third, The alteration of the bond by Kemp; Fourth, Recording of the bond as notice; and Fifth, Subsequent purchases, without notice. Upon all these points, our opinion is with the defendant. Revised Statutes of 1845, p. 96, secs. 24 to 29, prescribo that defendant may, after answer to the bill, file cross-bills, and thereupon, like rules for answers thereto, may be taken, and answers shall be evidence as in original suits. The cross-bill under our statute is held to be an adjunct to the original, and requires no service. Fleece v. Russell et al., 13 Ill. 32. Still the party should take some step in it, in order to obtain an answer, make an issue and have a hearing at the same time as the original. Simply filing a cross-bill, without taking any further step in", or notice of it, will not be allowed to hedge up the way and suspend the rights of original complainant to proceed with, and have a hearing of his cause. Such seems to us to have been the course taken with one of these cross-bills, if indeed it be not answered by the one only answer filed, under a rule to answer (defendant’s cross-bill.) The rule and the answer were both treated as embracing all that was necessary to be done; and we see and hear nothing more of the matter, until the question is raised in this court, that one of the cross-bills has not been answered. We think it too late; the party must be considered as either having abandoned his cross-bill or waived any other or separate answer than was made. The testimony to Reed’s signature to the bond, corroborated as it is by so many strong circumstances showing his recognition and admission of a contract about the land, we deem altogether sufficient and satisfactory, and we think it unnecessary to recapitulate it. The alterations admitted by Kemp to have been made by him, are immaterial. Nor indeed can we regard any alleged alterations to be material; to alter the sense, liability, or the obligation of the bond. If it were set up, or in fact made, as a mortgage, the alteration of the consideration from sixty-three to sixty-five, taking that to be the amount of the debt, would be a material one, and enlarge the amount of the obligation. So would a change in the penalty of a bond. But it would seem to be otherwise if the mere recital of a consideration in a .deed or contract, for the simple and sole purpose of showing that there was a valuable consideration paid, or to be paid. Such appears to us to be the character of this recital, and the object of expressing the amount paid in this case, and it can make no difference in the validity or obligation, whether it wore five or sixty-five. There is no presumption of law arising upon the face of an instrument from bare inspection of its appearances, whether it has been, and if so, when, altered from the true contract ; such appearances may throw suspicion and distrust upon the instrument, but it is a question of fact and not of law. Gillett et al. v. Sweat, 1 Gil. R. 489. In Walters v. Short, 5 Gil. R. 256, the court express dissatisfaction with a rule of presumption in favor of the alteration being made at the time of the execution of the instrument; but while they seem to incline to a contrary presumption, they lay down no rule on the subject, as to a presumption in law at all, but seem to put it, as we think it should be, upon the matter of fact. The party producing such an instrument, is called upon for explanations, and if he fail to give them, suspicion may become the conviction of fact in the mind of the court or jury, that such alterations, or appearances of alteration, were subsequent to the execution and delivery. Such a conclusion seems strangely preponderant in the mind of the court in that case. Still these explanations may, themselves, be found on the face of the paper. See 2 Stark. Ev. 254; see also Cumberland Bank v. Hall, 1 Halstead R. 215. A bond is valid without inserting the name of the obligor in the body of the bond. Ex parte Fulton, 7 Cowen R. 484. So the insertion afterwards, is an immaterial alteration. So may “year ” be inserted, when it will not alter the obligation of the contract. Hunt, administrator, v. Adams, 6 Mass. R. 519. So the inserting of “ pump and well of water” into a conveyance, has added nothing, as they passed without. Bowen v. Pinkham, 18 Pick. R. 172. Prefixing as a caption to an auction sale, the words “sales at auction, March 6, 1826,” was held immaterial. Nichols v. Johnson, 10 Conn. R. 196. But these must be done innocently, and without a fraudulent design, otherwise they will vitiate. 1 Greenleaf Ev., Secs. 567, 568, 569. Tested by all these examples, and compared with others reported, and by the strictest scrutiny into the apparent or supposed motive in this instance, and we still find nothing which will authorize us to set this contract aside. Ignorance is the most apparent motive. While we sustain the contract, however, we will not withhold an expression of our decided disapprobation of all, or any liberties of this character, with writings by which others are bound. No advantages are ever gained, and most frequently much injury is done the party himself, by the suspicion and distrust thrown upon his acts and his motives. We are all agreed, that, admitting that Kemp made' them, they are sufficiently explained by the proofs, are consistent with the true contract of the parties, and it is valid and binding. The fourth point involves a construction of the recording acts, in' relation to unacknowledged contracts being constructive notice, when recorded. In Bourland v. The County of Peoria et al., in this volume, we have noticed the several changes in the time for recording title papers, up to the act of 1833, which gave them effect and made them notice from the filing, as to all creditors and subsequent purchasers, and void as to them until such filing; and we have adverted to the act of 1827, which embraced all contracts and agreements concerning or affecting lands in law or equity. In the Revised Statutes of 1845, the language is, if possible, still more comprehensive, and requires “ deeds and other instruments relating to or affecting the title to real estate to be recorded.” (p. 108, Sec. 22.) Before they 6an be recorded, they must be acknowledged or proved, as provided in Sec. 16, p. 105. Those so acknowledged or proved, may be read in evidence without further or other proof of execution; Sec. 25. Where not so acknowledged or proved, they may still be filed, and operate as notice and take effect; but for purposes of evidence, their execution must be proven as at law, before the recording acts ; Sec. 28, p. 109. Similar provisions on p. 305, Sections 25, 26, give a like effect and notice to levies of attachments and executions from foreign counties, or attachments in the same, from the filing of a certificate of the levy with the recorder. This bond was not acknowledged. Two questions are raised upon this state of the facts: That no instrument, without some sort of acknowledgment, is entitled to be filed or recorded, and doing so will not help them, or amount to any kind of notice. It is so held in Connecticut under a recording act, limited to such legal instruments, deeds, conveyances and mortgages as convey title. None others are provided for or required to be recorded. Carter v. Champion, 8 Conn. R. 554; Sumner v. Rhodes, 14 Conn. R. 188. So, in Galt v. Dibrell, 10 Yerg. R. 154; De Witt v. Moulton, 17 Maine R. 418; Lessee of Heister v. Fortner, 2 Binn. R. 42; Brown v. Budd, 2 Carter Ia. R. 445; Halsteads v. Bank of Kentucky, 4 J. J. Marsh. R. 558; Lessee of Shultz v. Moore, 1 McLean R. 527; Lewis et al. v. Baird et al., 3 McLean R. 63, 64, 65; Astor v. Wells, 4 Cond. R. 513; James v. Morey, 2 Cowen R. 295; Tillman v. Cowand, 12 Smeed and Marsh. R. 266; Thompson v. Thompson, 2 How. Miss. R. 745. So the doctrine is summed up by Judge Story, 1 Story’s Eq. Jurisp. Sec. 404; Chouteau v. Jones et al., 11 Ill. R. 320. I have referred to these decisions to show that they were made upon statutes differing from ours; some excluding from registration and record, deeds, etc., which were too defective to pass the estate; others, for want of compliance with the law in relation to acknowledgments. Our statute has introduced a very different policy, both as to the kinds and character of the instruments and the acknowledgments. In its language it comprehends everything that may relate to or affect the title, and requires all such to be recorded, without any qualification as to whether they be sufficient in law, or not, to effectuate the object purported on their face. It would seem to us to be the intention of the legislature, in general, to make the registry and recording books, and the filing of levies, etc., as complete a depository as possible of the State, of land titles, as they may be presented and affected by conveyances, contracts, incumbrances and liens. All such are not included, such as resulting trusts, mechanics’ and vendor’s heirs, but most are. This bond was undoubtedly within the meaning of the act, and required to be filed and recorded to have effect as to creditors and purchasers. It is in the same enlarged sense and comprehensive view that we have regarded and interpreted the meaning of the legislature, expressed in the 23rd section, as including unacknowledged writings, as among those “ required to be recorded,” giving them effect from, and making them void until, such filing as to all creditors and subsequent purchasers. When they are acknowledged or proved, according to law, proof of their execution is dispensed with. Although not recorded, and if recorded, also, a copy of the record is proof, in case of loss, etc., of the original; Sec. 25. The object of the acknowledgment or proof, in the mode prescribed by the act, seems to be twofold : to establish its due execution, and to entitle it to record; not to being filed, giving to the act of recording the additional effect of making a copy of the record evidence under certain circumstances. The requirement of the 22nd section to record all deeds and other instruments relating to or affecting the title to real estate, is general, and embraces all that so relate, or have such effect upon title, and is not qualified or confined to such of them only, as are duly and legally, or defectively acknowledged or proved. But before they are entitled to be recorded, they must be acknowledged or proved, as prescribed in the 16th and 18th sections. The 23rd section speaks generally of all those “ required ” to be recorded, and declares they shall take effect' from the filing, and makes them void until the filing. In reaching the true meaning of the whole act, it is worthy of note, that the 25th section, in regulating the effect of the acknowledgment, and the additional effect of its recording, embraces the same instrument in two relations, one to the land as affecting its title, and therefore, “ required ” to be recorded, and the other, to its character of evidence, and “ entitled ” to be recorded. Such as are “ required or entitled,” shall be taken as evidence, etc. The several sections, therefore, have reference to distinct parts of one general system. The 22nd declares what kind of instruments shall be recorded; the 23rd declares when and how they shall take effect to secure the interest to the purchaser, as between him and subsequent purchasers, or creditors; the 25th fixes their character generally, as evidence, when acknowledged or proved only, and also when recorded. The 28th section is for a very different object; it is to establish and declare their effect, as a deed or contract, as constructive notice to subsequent purchasers and creditors; and this they shall have from the filing, “ though not acknowledged or proved according to law.” But before the instrument can be read for the purpose of showing of what the party had this constructive notice, the “ defects of such acknowledgement or proof” must be supplied by proof of its execution, “ in the manner required by the rules of evidence, applicable to such writings,” that is, at common law, instead of the statutory mode. The phraseology, “ not acknowledged or proven according to law,” and “ the defects of such acknowledgment or proof,” it is contended, implies that attempts have been made to take acknowledgments or proof, which are wanting in some prerequisite, and excludes those where there was a total neglect. The language is capable of this restricted implication, but the full scope and spirit of our recording acts, does not require us to so limit their meaning, when they have used language of much broader and more general import, and which, in this larger sense, does not conflict, but harmonizes, with, and more fully carries into effect the general objects and spirit of the whole system. I must think that where there is no attempt at an “ acknowledgment or proof ” of the execution under the statute, that the instrument is literally within the phrase of “ not acknowledged or proven according to law,” and that common law proof of the execution would “ supply the defects of such acknowledgment or proof” under the statute. I have examined these provisions the more critically and prolixly, because it is the first time the question has been raised. While this court, in Chouteau v. Jones et al., 11 Ill. R. 320, recognized the general rule laid down in the cases cited above, in relation to deeds recorded under the acts of 1819 and 1822, yet they applied the present rule contended for by the court, to a defective acknowledgment under those acts, as cured under the act of July, 1837, similar to those now in force. And the court in Martin v. Dryden et al., 1 Gil. R. 218, 214, seem to regard it as the true construction of the acts. The second objection is, that although such writings may become notice by filing, or filing and recording, yet, under the 28rd section they take effect at the filing, and “ until the same shall be filed for record,” they shall be “ adjudged void,” as to all “ creditors and subsequent purchasers, without notice.” Therefore, if before such filing, a lien attaches, or a contract or conveyance is executed to a subsequent purchaser, the filing is too late to change, either with constructive notice, even though made before the filing of the certificate of levy of the creditor, or the deed or contract of the subsequent purchaser. That the race of diligence is not open to the first purchaser by filing, at any time before the filing of the creditor or subsequent purchaser. This point is new, and is against the received opinion of the true meaning of the law. The court seems to take a different view of it, though it was not directly in judgment, where a creditor was concerned, in Robinson v. Rowan, 2 Scam. R. 500. The question was more directly before the court, and between purchasers, in Doyle et al. v. Teas et al., 4 Scam. R. 252. The same view, as to a creditor’s lien attaching, was taken in Martin v. Dryden et al., 1 Gil. R. 213 ; Cook v. Hall, ibid. 578. So in Gaty et al. v. Pitman, 11 Ill. R. 21, and Kennedy et al. v. Northrup et al., 15 ibid. 152. Upon full consideration of the statute, we are of opinion that its true meaning will allow the first purchaser to sustain his rights, by beifig first on file for record. Under this view of the statute, we must regard Atkinson as a purchaser with constructive notice, as well as his vendees, the Duffield mining company. The fifth and remaining question, therefore, becomes unimportant, as it was raised by the defendant here, questioning their purchase, because the consideration was partly paid after notice, and partly yet unpaid. The question is one of importance, and we think proper to waive the consideration and examination of it for the present case. Decree affirmed.